Zavala Alvarez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 21, 2023
• Docket: 22-1329
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 21 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE CRUZ ZAVALA ALVAREZ, No. 22-1329 Agency No. Petitioner, A039-837-305 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted November 17, 2023** San Jose, California

Before: MURGUIA, Chief Judge, and PAEZ and FRIEDLAND, Circuit Judges.

Jose Cruz Zavala Alvarez (“Zavala Alvarez”), a native and citizen of

Mexico, petitions for review of the denial by the Board of Immigration Appeals

(“BIA”) of his applications for withholding of removal and protection under the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Convention Against Torture (“CAT”). We review questions of law de novo and

factual findings for substantial evidence. Diaz-Reynoso v. Barr, 968 F.3d 1070,

1076 (9th Cir. 2020). We deny the petition.

1. Zavala Alvarez challenges the BIA’s conclusion that, because he failed to

establish that he had experienced past persecution in Mexico or that he more likely

than not would be persecuted if returned to Mexico, he is not eligible for

withholding of removal.

Substantial evidence supports the determination by the Immigration Judge

(“IJ”) and BIA that Zavala Alvarez did not experience persecution in Mexico. See

Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014) (“Where, as here, the

Board incorporates the IJ’s decision into its own . . ., this court will review the IJ’s

decision to the extent incorporated.”). Zavala Alvarez testified that he received

one indirect threat, and he never alleged that he was physically harmed. Although

“[t]hreats are relevant to the past persecution analysis[,] . . . ‘threats, without more,

do not necessarily compel a finding of past persecution.’” Sharma v. Garland, 9

F.4th 1052, 1062 (9th Cir. 2021) (quoting Villegas Sanchez v. Garland, 990 F.3d

1173, 1179 (9th Cir. 2021)). Threats are “most likely to [rise to the level of]

persecution where [they] are repeated, specific and combined with confrontation or

other mistreatment.” Id. (quoting Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028

(9th Cir. 2019)). Economic harm can also constitute persecution, but only if it

2 22-1329 amounts to “a threat to life or freedom,” id., and the economic hardship of which

Zavala Alvarez complains did not rise to that level. Similarly, although Zavala

Alvarez’s experiences may have caused emotional distress, that distress did not

amount to persecution. Lanza v. Ashcroft, 389 F.3d 917, 934 (9th Cir. 2004)

(“[N]ot all negative treatment equates with persecution.”).

Substantial evidence also supports the determination by the IJ and BIA that

Zavala Alvarez has not established that he would more likely than not be subject to

persecution in the future. Zavala Alvarez received warning of a single threat in

2015, and the same person who gave him that warning returned in 2017 looking for

him. Pablo, the alleged source of the threat, has since been killed. Although

Zavala Alvarez worries that Pablo was killed by his own cartel and that the other

cartel members will now target him because of his affiliation with Pablo, the

determination by the IJ and BIA that this fear is too speculative is supported by

substantial evidence. No one from the cartel has tried to reach Zavala Alvarez or

his family since 2017. Nor has Zavala Alvarez established that “there is a pattern

or practice” in Mexico “of persecution of a group of persons similarly situated” to

him based on a protected category and that he belongs to that group. 8 C.F.R.

§ 1208.16(b)(2)(i)-(ii). Even assuming that childhood friends of cartel members

were a protected category, the country conditions reports and Zavala Alvarez’s

cousin’s death provide evidence of general crime and violence by cartels, not a

3 22-1329 specific pattern of targeting childhood friends of cartel members.

2. Substantial evidence also supports the determination by the IJ and BIA

that Zavala Alvarez is not eligible for CAT relief. To qualify for CAT protection,

Zavala Alvarez bears the burden of establishing “that it is more likely than not that

he . . . would be tortured if removed to” Mexico. Id. § 1208.16(c)(2). “Evidence

of past torture inflicted upon” the petitioner is a relevant factor. Id.

§ 1208.16(c)(3)(i). For the same reasons that substantial evidence supports the

conclusion that he has not established past persecution or a likelihood of future

persecution, Zavala Alvarez has not established past torture or that it is more likely

than not that he would be tortured if he were returned to Mexico.

Petition DENIED.

4 22-1329